Ex parte Harrington

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS Jefferson Circuit Court, CV-16-904776; Court of Civil Appeals, 2170566

          BOLIN, JUSTICE.

         William T. Harrington petitioned this Court for certiorari review of the Court of Civil Appeals' order dismissing his appeal as untimely.

         Procedural History

         On December 23, 2016, Harrington sued Big Sky Environmental, LLC, Gabriel Kim, and Clayton "Lanny" Young, seeking compensatory and punitive damages resulting from a dispute over an employment agreement. Harrington alleged breach of contract, negligence, wantonness, fraud, suppression, and deceit. On March 10, 2017, Big Sky and Kim filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P.

         On April 5, 2017, Harrington filed an amended complaint. Harrington again named Big Sky, Kim, and Young as defendants. He added as defendants Exoro Global, LLC ("Exoro Global"), and Exoro Global Capital, LLC ("Exoro Capital"). He once again alleged breach of contract, negligence, wantonness, fraud, suppression, and deceit. Harrington listed Kim as the "agent for service" of process for both Exoro Global and Exoro Capital. Harrington filed a notice to serve Exoro Global and Exoro Capital by certified mail. It appears that Exoro Global and Exoro Capital have a business interest in Big Sky. On April 10, 2017, Big Sky and Kim filed a motion to dismiss the amended complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P. In their motion to dismiss, Big Sky and Kim stated in a footnote that neither Exoro Global nor Exoro Capital had been served.

         On April 28, 2017, Harrington filed a second amended complaint in which he named Big Sky, Kim, Young, Exoro Global, and Exoro Capital as defendants, again alleging breach of contract, negligence, wantonness, fraud, suppression, and deceit. Kim was again listed as the "agent for service" for Exoro Global and Exoro Capital. On May 12, 2017, Big Sky and Kim filed a motion to dismiss Harrington's second amended complaint for failure to state a claim upon which relief could be granted under Rule 12(b)(6).^[1]

         On September 28, 2017, the trial court entered an order dismissing the claims against Big Sky and Kim with prejudice on the ground that there was no valid employment contract. The trial court then set the case for a status review on November 7, 2017. On October 26, 2017, Harrington filed a motion purportedly seeking to "alter, amend, or vacate the judgment," arguing that a valid employment contract existed. On December 20, 2017, the trial court denied Harrington's motion.

         On January 26, 2018, the trial court entered the following order:

"The Court has been made aware that the parties are in disagreement over whether or not its order of September 28, 2017 is final and in accordance with Rule 54(b) of the Ala. R. Civ. P.

"After reviewing the Plaintiff's Second Amended Complaint and the aforementioned order, the Court finds that the granting of the Defendants' [Rule] 12(b)(6) motion dismissed any and all claims asserted by the Defendant.^[2]

"It is therefore ORDERED, ADJUDGED, and decreed that this Court's order dated September 28, 2017 is hereby made FINAL. Any and all claims against the Defendant(s) are hereby DISMISSED, without prejudice."

(Capitalization in original.)

         On March 7, 2018, Harrington filed a notice of appeal. On March 15, 2018, this Court transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala. Code 1975. On July 19, 2018, the Court of Civil Appeals entered an order requesting that the parties file letter briefs addressing whether there was a final judgment from which to appeal and, if so, whether the appeal was timely filed. The parties responded, and on July 31, 2018, the Court of Civil Appeals, by order, dismissed Harrington's appeal as untimely. Harrington sought rehearing of the dismissal, but his ...